State-Sanctioned Murder

Written by Rabbi Elliott Karstadt — 30 July 2023

‘Thou shalt not murder’ we are told in the portion that Thoe read for us this morning.

A perennial question that this commandment raises is whether state-sanctioned killing is acceptable.

This week, jurors in the United States have continued to contemplate the question of the sentencing of Robert Bowers, the man who murdered 11 Jews as they gathered for prayer at the Tree of Life Synagogue in Pittsburgh in 2018. Federal prosecutors have pushed for the death penalty, which would be the first time such a sentence has been passed by a federal court under the Presidency of Joe Bidon.

Relatives of 9 of the 11 victims, wrote last year of their support for the death penalty in this case: ‘We are not a ruthless, uncompassionate people; we, as a persecuted people, understand when there is a time for compassion and when there is a time to stand up and say enough is enough — such violent hatred will not be tolerated on this earth.’

The victims’ families speak of compassion. And compassion is one of the considerations for those who oppose the death penalty – the argument that being handed a death sentence causes undue suffering.

Considering the question of the sentence that should be handed down to Bowers, Cantor Michel Zoosman, who is a prison chaplain in the US, writes: ‘I used to support the death penalty, but that was before I became a prison chaplain in 2009 and my eyes were opened to its horror. As I have witnessed time and again in my correspondence and conversations with the condemned, capital punishment constitutes psychological — and often physical — torture.’

But, of course, this assumes that arguments against the death penalty lie on a foundation of compassion – compassion for the one who might face death, who might suffer for their own crimes. But compassion is not necessarily the foundation of an argument against the death penalty. One argument is that too easy, too compassionate.

Rabbi Jonathan Perlman, who leads a congregation that met in the same building and was there on the day of the massacre opposes handing down the death penalty to Bowers, saying of the pain he caused: ‘Let him live with it forever.’

Of course, one response in the face of such atrocities is to hand the victims the ultimate influence over the severity of punishment – who else should be able to make such a judgment, other than those directly affected?

And yet our Jewish tradition seems to point us away from victim-centred punishment.

Which is not to say that Jewish tradition against the death penalty in principle. In the Torah we read ‘a life for a life’ (Exodus 21:23). While they don’t reject the principle of a life for a life, the rabbis of the Mishnah do deny that it is our obligation to execute those who take the lives of others in every case in practice.

We learn in the Mishnah that a special Sanhedrin would be required to sentence someone to death. That’s either 23 elders – as opposed to the 3 you would need for a Beit Din – and if even one of them votes against, then the death penalty cannot be handed down. The Mishnah goes on to say:

A Sanhedrin that executes once in seven years is considered bloodthirsty. Rabbi Elazar ben Azarya says: [it would be considered bloodthirsty if it handed down the death penalty just] once in seventy years.

Rabbi Tarfon and Rabbi Akiva say: If we had been in the Sanhedrin, no person would have ever been executed.

Rabban Shimon ben Gamliel then responds with one of the foremost arguments for defending the death penalty, saying: Then they would increase murderers among the Jewish people. In other words, Shimon ben Gamliel believes that the death penalty acts as a deterrent against the crimes for which it is handed down as a punishment.

And yet, that argument is consistently disproved. I don’t have statistics for crime in Rabban ben Gamliel’s day. But, according to the ACLU, the American Civil Liberties Union: ‘there is no credible evidence that the death penalty deters crime more effectively than long terms of imprisonment. States that have death penalty laws do not have lower crime rates or murder rates than states without such laws. And states that have abolished capital punishment show no significant changes in either crime or murder rates.’

Deterrence is often the argument made by those who want to bring back the death penalty in this country. Though the reality is that support for capital punishment increases when people are asked about specific types of murder. According to a poll by YouGov, support for the death penalty in the UK hovers around 50%, though is higher when people are asked about cases of specific types of murder: the murder of a child, multiple murder, and terrorism. This fact would suggest that at least some of the support for capital punishment comes not from a desire to create a deterrent, but rather to enact some kind of communal revenge on those who have perpetrated the worst kind of crimes.

Who can blame them? If someone murdered my child, or any member of my family; if someone murdered any member of my community in front of me, I would doubtless want the harshest, most severe punishment handed down on them.

And that is why it is a good thing that, heaven forbid something like that would happen, I would not sit in judgment upon the perpetrator.

And this is what is so radical about what Rabbi Akiva and Rabbi Tarfon are saying in the Mishnah. What if it had been their relatives who were shot down in cold blood? What if they had been sitting in judgment of Robert Bowers? Or of Dylann Roof, who slaughtered nine worshippers at a church in Charleston in 2015? Would they still be able to find it in themselves to vote against the death penalty in such a situation?

Maybe they would. If we are to believe all the stories of Rabbi Akiva, he ended his life as a martyr, executed by the Romans for continuing to teach Judaism in public, despite the fact that it had been banned by the authorities. He faced the death penalty himself, in circumstances that we would find abhorrent.

He and Rabbi Tarfon lived in a context in which the Roman authorities were more than happy to kill their subjects in violent and abhorrent ways in order to assert their political authority. They refused to be part of such a brutal system – a system that placed no intrinsic value in human life.

As Rabbi Josh has pointed out from this Bimah before, Rabbi Akiva and Rabbi Tarfon’s statement that had they been part of the Sanhedrin they would have voted against capital punishment in every case, is so radical because it outright contradicts the Torah. In the book of Genesis, we read: ‘Whoever sheds the blood of man, by man shall his blood be shed; For in the divine image did God make man.’ While agreeing that human beings were created in the image of God, they understand it as a reason not to enact the death penalty in any case: because to execute a human being, regardless of what they have done, is to destroy something made in the image of God.

Whenever the death penalty is handed down, it undermines the idea of the intrinsic value of every human life. This is not easy, but it is an injunction that is laid upon us by our core religious values. It is easy to see the intrinsic value in those we love, maybe even in those anonymous individuals we pass by in the street. But to see it even in the most evil, the most vile human beings – that is the challenge that our tradition hands us.

And it is no coincidence that, on the whole, the outlawing of capital punishment goes hand-in-hand with liberal democracy.

Bezalel Smotrich, one of the masterminds of the vicious judicial overhaul in Israel, has been an outspoken advocate of the introduction of the death penalty in Israel – even going so far as to state that he himself would be happy to serve as an executioner. In March this year, the Knesset approved the second reading of a bill that would introduce a mandatory death sentence for those the state has deemed ‘terrorists’. We should see this move as another blow to Israeli democracy. It allows the government to more easily create one law for Jewish murderers, and another for Palestinian killers.

There are enough murders in this world, without adding in state-sanctioned murder. This week we marked Tisha b’Av, in which we commemorate and mourned the destruction of the Temple. It was also an opportunity to address the great hurt many are feeling over developments in Israel, the fears that many of us hold that that country that is so precious to us is being dismantled and replaced with something very different.

And we begin the journey to Rosh Hashanah and Yom Kippur, the season of judgment and atonement. To oppose the death penalty is not to oppose responsibility. I want those who murder and torture to live in order to feel the responsibility of what they have done. In death that is impossible. As God says through the prophet Ezekiel, in a passage we will cite on Yom Kippur itself: ‘Is it my desire that the wicked shall die?—says the Sovereign GOD. It is rather that they shall turn back from their ways and live’ (Ezekiel 18:23).

Shabbat Shalom